Can a service provision change then be a relevant transfer for TUPE purposes if the new provider sub-contracts the services? Yes, according to the EAT in Qlog Limited v O'Brien and others.
In this case the Employment Appeal Tribunal (EAT) considered the approach taken by the Employment Tribunal to identify a transfer by way of a service provision change for the purposes of regulation 3(1)(b)(ii) TUPE.
McCarthy Haulage lost the contract which was awarded to Olog. The Manager and drivers were transferred to Olog under TUPE. Olog decided to sub contract the Manager and drivers to another company. They were then dismissed. They sued Olog for unfair dismissal. Olog said that TUPE did not apply as they did not employ drivers.
The EAT upheld the Tribunal's decision that "activities" undertaken by an incoming service provider were fundamentally or essentially the same as those provided by an outgoing service provider, even though the method of delivery was very different.
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